Eads v. Metropolitan Railway Co. , 43 Mo. App. 536 ( 1891 )

Ellison, J.

It is everywhere agreed that carriers must treat their passengers with respect and must endeavor to protect them from injury or insult, not only by their employes but from strangers and •fellow-passengers. Spohn v. Railroad, 87 Mo. 74.

Public vehicles where women and children are frequently found, and where they have a right to demand security from disorderly scenes, are especially ill adapted to exhibitions of belligerence either on the part of the carriers, servants or the passengers. The price of a passenger’s right to carriage, good treatment and protection by the carrier is not alone the money he pays, but is also his own good behavior.

So, if in this case, plaintiff was guilty of disorderly conduct without having been given reasonable provocation for such conduct by the conductor, he forfeited his right as passenger to remain on the car, and the defendants’ servants, without using any more force than was reasonably necessary to accomplish the purpose, had the right to eject him.

But it may frequently be a question as to what is disorderly conduct or misbehavior on the part of the passenger. All men do not conduct themselves alike in contact with their fellows. Some are deferential and gentlemanly, while others are not. It is not all conduct which 'may be said to be outside the pale of good breeding that will bar a passenger from the protection of the law against the carrier for the act of the servant in ejecting him from the car. The case of Peendergast v. Compton, S. C. & P. 454, was where an English army officer was excluded from the cuddy of the ship where, as a passenger, he had a right to be and to take his meals. In answer to a suit for damages it was stated “ that the defendant as captain of the ship was accustomed to and of right did sit, provide and superintend (at the said table) as his table, and that it was the practice that no one but the defendant should call for or require that wine should be brought, and that it was usual for persons taking their meals there to conduct themselves in a decorous manner, .according to the rules of good breeding, and that the plaintiff, on the twentieth of July and divers other days, vulgarly, etc., and contrary to the rules of good breeding, etc., although there were knives, forks, spoons and the usual and proper implements and conveniences on the table, wherewith the plaintiff could and ought to have helped himself to what he wanted, he helped himself to meat, potatoes, etc., by seizing and laying hold of them with his fingers and hands, and vulgarly and rudely, etc., reached and stretched forth his hands and'arms before and in front of persons sitting at the table with him, and in other respects conducted himself in an ungen tiemanlike, rude, vulgar, indecorous, offensive and disgusting manner, and in a manner which rendered him an unfit and improper person to take his meals in the cuddy, or to be allowed to be in the same. * * * And also to certain persons belonging to the ship and under the defendant’s command, spoke of and concerning the defendant, in a turbulent, threatening, disrespectful and insulting manner, and menaced and threatened to cane and beat the defendant,” etc. It was held that it was difficult to say that such manner of eating or helping himself was sufficient to justify plaintiff’s expulsion. But that his threat to chastise defendant was sufficient.

It will be seen that it is many times a question whether certain acts or words are disorderly ; they may be equivocal, so that their character must be determined by the manner, tone, gesture or intention. Other conduct is unequivocally bad. It demonstrates itself. It strikes all respectable and orderly people alike. The former class should be submitted to the jury ; the latter should be declared disorderly - by the court. If a passenger should give loud utterance to a foul obscenity in the presence of lady passengers, it should no more be submitted to a jury to say whether such conduct was jlisorderly, than it would be if the passenger had made a grossly indecent exposure of his person. I use extreme cases to better illustrate the meaning.

Now in this case it appears evident from the testimony given by plaintiff as set out in the statement, that when he handed the conductor back the nickel, the latter thought he was paying his fare and so registered it, and on being told that he was returning a mutilated one which had been given him in change, the conductor had a right to express his opinion, in an inoffensive way,, that he thought the nickel a good ■ one. If, therefore, the plaintiff, without having been reasonably provoked thereto by the improper conduct of the conductor, wilfully and in anger called him a liar in the presence and hearing 'of the other passengers, he was guilty of disorderly conduct and the jury should have been so instructed as was asked in defendant’s refused instruction, numbered 11, and plaintiff’s instruction should not have submitted that matter to the jury.

II. In order to dispose of the second branch of this case, it will be necessary to make these observations as applicable thereto. The carrier is responsible for the malicious and wanton acts of the servant tó a passenger whether done in the line of his employment or service or not, if done during the course of the discharge of his duty to the master which relates to the passenger. For he owes him, as before stated, not only carriage, but protection also, and if he furnishes a servant who, instead of protecting, insults or assaults, or beats the passenger, he has directly failed of his duty to the passenger. Goddard v. Railroad, 57 Maine, 211-218; Craker v. Railroad, 36 Wis. 657; Philadelphia Ry. Co. v. Derby, 14 How. 468; Pendleton v. Kinsey, 3 Cliff. 416; Bryant v. Rich, 106 Mass. 180; Thompson’s Carriers of Passengers, 369.

We need not say what the ride would be where a passenger begins a personal quarrel with the carrier’s servant over matters disconnected from the service and thereby provokes an assault; as in this case the conductor does not appear to have been provoked into a. combat as such, as though with an enemy or one who had offended him, but was enforcing the rules of the company for disorderly conduct. He was putting plaintiff off, as he states, for raising disturbance before the ladies. For this reason instructions, numbered 4, 5 and 6, for defendant, should not be given. If a passenger wantonly offers a servant a personal insult and the servant resents it on the spot in a personal way without reference to Ms duties as a servant, it may be the passenger thus wantonly bringing about the assault could not complain of the carrier, whatever were the results. But, for the foregoing reason, it is not necessary to go into such matter.

The carrier is, however, responsible for the malicious and wanton act of the servant to a stranger or trespasser, only when the act is in the line of his employment. If the lady in Craker v. Railroad, supra, had not been a passenger, the carrier would not have been liable for the assault. But it is a part of the servant’s employment to put a trespasser off of the carrier’s vehicle, yet he must not kill him by throwing him off while the vehicle is going at great speed. Angel & Ames on Corp., sec. 388 ; The NorthwesterRy. Co. v. Hack, 66 Ill. 241; Holmes v. Wakefield, 12 AÍlen, 580.

The testimony for defendant tends to show that plaintiff occupied the relation of passenger which he afterwards forfeited by his.misbehavior, and thence, on to the close of the difficulty, occupied the relation of a stranger. So when plaintiff, by his conduct, unfitted himself to be a passenger in defendant’s car, it became the duty of defendant, a duty it owed to other passengers, to remove him. In removing him the servants were acting in the line of their duty or service to the carrier, and the carrier is responsible to him, though he was no longer a passenger, for any unnecessary force on the part of the servants, though it be wanton and malicious, in effecting such removal. But for whatever occurred after his expulsion, the carrier is no longer resjjonsible ; for such acts of .the servants are acts with strangers and are not in the line of their employment. It seems not to be certain when plaintiff was struck over the head with the bell-register. If he was struck after his expulsion was completed, defendant should not be held therefor. But if he was struck during the time he was being put off, or as the final exertion or effort to get him off, so that the stroke was but a direct continuation oí the effort to get him off, defendant would be liable, provided such stroke was not reasonably necessary under all the circumstances surrounding the struggling parties to accomplish the purpose and to prevent his immediately getting back on the car; there being testimony tending to show such was his intention; or provided, further, such stroke was not given in defense of a threatened assault with a knife.

The judgment, with the concurrence of the other judges, is reversed and the cause remanded.